The Queen (Norcott) v The Recorder and Justices of Cork (1). The Queen (Nason) v The Same

• Jurisdiction: Ireland
• Judgment Date: 29 April 1890
• Date: 29 April 1890
• Court: Chancery Division (Ireland)

Appeal.

Before LORD ASHBOURNE, C., PALLES, C.B., and FITZ GIBBON and BARRY, L.JJ.

THE QUEEN (NORCOTT)

and

THE RECORDER AND JUSTICES OF CORK (1). THE QUEEN (NASON)

and

THE SAME.

In re HeaphyUNK 22 L. R. Ir. 500, 515.

Milner v. RhodenUNK 15 Jur. 1037.

The Queen v. The Justices of Cheshire 8 A. & E. 398.

The Queen v. The Justices of WorcestershireENR 3 E. & B. 477.

The Queen The Justices of CorkUNK 7 Ir. C. L. R. 244, 249.

The Queen v. Justice of MayoUNK 7 Ir. C. L. R. 234.

Bunbury v. Fuller ENR 9 Ex. 111, 140.

Thompson v. Shiel 3 Tr. Eq. R. 135.

The Queen v. Justices of PirehillELR 14 Q. B. D. 13.

The Queen v. Justices of ManchesterELR 20 Q. B. D. 430.

The Queen v. AdamsonELR 1 Q. B. D. 201.

Keen v. The Queen 10 Q. B. 928.

The Queen v. Justices of WestmorelandELR L. R. 3 Q. B. 457.

Re HeaphyUNK 22 L. R. Ir. 515.

The Queen v. Justices of BristolENR 3 E. & B. 479, n. (d).

Ex parte Hopwood 15 Q. B. 121.

The Queen v. Justices of Cheshire 8 A. & E. 398.

The Queen v. of MiddlesexELR 2 Q. B. D. 516.

seven 1 & 2 Vict. C. 109, s. 32.

Ex parte BradlaughELR 3 Q. B. D. 509.

The Queen v. Justices of CorkUNK 7 Ir. C. L. R. 249.

Tithe rentcharge — Application to vary — Ascertainment of average price — Certiorari — 4 Geo. 4, c. 99, s. 43, and 1 & 2 Vict. c. 109, s. 32(2).

VOL. XXVIII.] Q. B. & EX. DIVISIONS. 185 Campbell in his able reply. He contended that Richard was in Appeal. the same position as Henry, and that the same reasoning would 1890. JACKSON apply to him. That is answered in this way-the tenancy in v. Henry is confirmed by the Statute of Limitations ; the tenancy WMASTEK. in Richard has received no such confirmation. Solicitor for the landlords : George Kennedy. Solicitors for the tenant : Atkinson Co. THE QUEEN (NORCOTT) v. THE RECORDER AND Appeal. JUSTICES OF CORK (1). 1890. THE QUEEN (NASON) v. THE SAME. April 28, 29. Tithe rentcharge-Application to vary-Ascertainment of average price Certiorari-4 Geo. 4, c. 99, s. 43, and 1 & 2 Yid. c. 109, s. 32 (2). In the month of October, 1889, notices were served, by persons payÂing more than per annum each of tithe rentcharge, on the tithe owners, of applications to the Justices of Quarter Sessions, at Midleton in the county of Cork, on the 28th October, 1889, to reduce the amount of the tithe rent-charge. The tithe rentcharges had been fixed originally in 1833, and had been raised in 1875 on the application of the tithe owners. On the 31st OctoÂber, 1889, the applications came on before the Recorder and Justices at MidleÂton, when they were adjourned to Mallow. On the 6th November, 1890, the applications were renewed at Mallow, when orders were made by the Recorder and Justices, dismissing the applications, with costs. No rule of continuances had been made. It appeared from an affidavit of the solicitor for the appliÂcants that at the hearing before the Quarter Sessions Court the posting of the notices and all preliminary matters were proved, and that, in the first of the cases, the price of barley, which had been taken as the measure of composition for tithes, varied by more than one-tenth from the price in the original certifiÂcate, and also from the price in the certificate of 1875 ; but in the second case, the price of oats, which was taken as the measure of composition for tithes, varied by more than one-tenth from the price found in 1875, though it did not (1) Before LORD ASHBOURND, C., PADRES, C.B., and FITZ GIBBON and BARRY, L.JJ. (2) 4 Geo. 4, c. 99, s. 43 :-At any time between the 1st day of May and 1st day of October in the third year next after the 1st day of November, on which any composition for tithes under this Act shall commence in any parish under the provisions of this Act, and in like manner at any time between the 1st day VoL. XXVIII. 186 LAW REPORTS (IRELAND). [L. R. I. vary by one-tenth from the price found in the original certificate. The Recorder and Justices refused to make the order : Held, by the Court of Appeal (affirming the decision of the Queen's Bench Division), that the order of the Quarter Sessions Court should be quashed, on the ground that the magistrates had exceeded their jurisdiction, and that a writ of mandamus should issue, directed to the Justices, requiring them to ascertain the average price of wheat for the past seven years, and if it varied by more than one-tenth since the date of the order of 1875, that the tithe rent-charge should be varied accordingly. APPEALS from orders of the Queen's Bench Division, dated the 7th February, 1890, making absolute conditional orders that writs of certiorari issue, directed to the Recorder and Justices of the county of Cork, to remove into the Divisional Court all and singular the orders made at the Michaelmas Quarter Sessions, 1889, at Midleton in the county of Cork, refusing the applications of the Countess of Kingston, Richard Johnston, Henry L. Johnston, and Pauline Barry, for an order reducing the tithe rentcharge in respect of the parish of Kilphelan, in the diocese of Cloyne and county of Cork, and of the said Countess of Kingston, H. L. Young, and Stephen Graham for a like order as to the tithe rentcharge in the parish of Kildorrery; and that writs of mandamus should issue, directed to the said Recorder and Justices, commanding them to hold an adjourned sessions, enter continuances upon, and to hear of May and 1st day of October in every subsequent third year during the continuance of such composition, but in no other or intermediate year it shall and may be lawful for the ecclesiastical incumbent of such parish, or for any other person or persons, or body corporate or collegiate, or corporation sole or aggregate, entitled to such composition or any part thereof, or for any three or more owners or occupiers of land in such parish, charged with the payment of the sum of three pounds or upwards each in respect of any such composition, to cause a notice in writing signed by such incumbent or other person or persons, or by the steward or agent of any such body corporate or collegiate, or corpoÂration, or by such owners or occupiers of land, to be affixed on the principal outer door of the church of such parish, or if there shall not be any church in such parish, then upon the principal outer door of every known place of religious worship in such parish on two successive Sundays, the last of such Sundays not being less than eight days previous to the day of holding the then ensuing Quarter Sessions for the Peace in the County in which such parish shall be situate, signifying that it is the intent of such incumbent or other person or persons, or body corporate, or corporation, or owners, or occupiers of land, to make application to the Justices of the Peace at such Quarter Sessions to have the average price of wheat or oats for the three years preceding inquired VoL. XXVIII.] Q. B. & EX. DIVISIONS. 187 v. William B. Norcott was owner of tithe payable out of the JUSTICES OF parish of Kilphelan, diocese of Cloyne, and county of Cork, CORE. deriving his title from the tithe-owner named in the original certiÂficate of tithe composition, dated the 3rd October, 1833, whereby it was certified that the true amount for all tithes within the parish amounted to £114 18s. 31d. William B. Norcott was lay improÂpriator of the parish. It was further certified that the average price of barley for three years ending the 1st November, 1830, amounted to 12s. per barrel. In 1875, William B. Norcott applied to the Justices at Quarter Sessions for an order increasing the composition in lieu of tithes, pursuant to 4 Geo. 4, c. 99, s. 43, the Composition Acts amending the same, and the Tithe Rentcharge Act, 1 & 2 Vict. c. 109, s. 32, with the result that the said composition was increased in proÂportion to the difference between the average price of barley for the preceding seven years, and that mentioned in the original cerÂtificate which was from 12s. to 19s. per barrel, and an order was made accordingly that said increase should take effect. of and ascertained, in order that such composition may be varied and increased or diminished for the ensuing three years in proportion to such average price ; and it shall be lawful for the persons or parties, by or on whose behalf such notice shall have been so given, to make such application to such Justices at such Quarter Sessions, in writing, for such purpose accordingly ; and thereupon it shall be lawful for such Justices, and they are hereby required at such Sessions or any adjournment thereof to ascertain the average price of good marketable wheat or oats within the said County for the term of three years next preceding such application, and for that purpose it shall be lawful for the said Justices at such Quarter Sessions (if they shall think fit so to do), to nominate and appoint a person to be an arbitrator for ascertaining the average price of the barrel of good marketable wheat or oats within such County for the term of three years then last past, and such arbitrator is hereby authorized and required from the Dublin Gazette to ascertain the price of a barrel of good marketable wheat or oats upon the average of such term of three years preceÂding, and to state and set forth such average price by his report in writing under his hand, to be delivered to the Justices at such session or some adjournÂment thereof, or at such time as such Justices shall direct; and if it shall appear that the average price of wheat, where wheat shall have been taken as P2 188 LAW REPORTS (IRELAND). [L. R.I. Appeal. The average price of barley for the seven years preceding 1890. 1889 was 14s. 6c1. a barrel, and an application was served on THE QUEEN W. B. Norcott by the Countess of Kingston, Richard Johnston, JUSTICES OF Henry A. Johnston, and Pauline Barry, being four persons liable Coax, to pay tithe rentcharge to the amount of £3, and upwards, of their intention to apply to the Justices at Quarter...